Why are ICC judges ‘punishing’ Kenyan victims for their cooperation?

When the prosecutor of the International Criminal Court indicted six Kenyans, he promised the victims and the world that Kenya would be an example on how to manage elections, avoid mass atrocities and ensure justice for the victims. But the Court has delivered on none of the above. Instead, the eight-year wait for justice through convictions and/or reparation appears to have been in vain.

It’s really disappointing that victims of Kenya’s 2007-2008 post-election violence continue to wallow in abject poverty and hopelessness. Many lack basic services such as water, education, housing, clothing and access to health care. Every day, they live with the mental anguish of death and loss. Others bear the scars of rape, torture and forced genital mutilation.

I was a victim too

I too was once a victim of post-election violence. My family and I were among thousands who were evicted from a region we once called home. When ethnic clashes broke out in 1993, I was in my early 20s. Over twenty years later, I have never gone back and remain uncertain about whether I will ever return.

Kenya experiences violence every election cycle, but the one in 2007-2008 brought us to the brink. The Commission of Inquiry on the Post-Election Violence (popularly known as the Waki Commission) recommended that the country should establish a local tribunal to try the perpetrators. Our legislators failed to do so and former ICC Prosecutor Luis Moreno Ocampo swung into action, promising to deliver justice for the victims. True to his words, in 2010, he nailed six persons – Uhuru Kenyatta, Francis Muthaura, Hussein Ali, Henry Kosgey, William Ruto and Joshua arap Sang.

However, to the disbelief and disappointment of the victims, the cases began to collapse in 2012, the last and most recent being the Ruto and Sang case. And so today, all hopes of any conviction have been crushed.

ICC judges: please help us

Nevertheless, the victims in the Ruto and Sang case wrote to the ICC last month, requesting the judges’ assistance in ensuring that they receive reparations from the Kenyan government. In the application, their legal representative indicated that since the government did not contest the finding that it has politically meddled in the case, placing the safety of witnesses at risk through acts of commission and omission, it should be ordered to compensate the victims. The brief also noted that all existing efforts by the government to compensate victims or to deliver justice for them through investigations and prosecutions were half-hearted.

On 1 July, the judges delivered their ruling, and with it victims once again received another shocker. “While this must be dissatisfactory to the victims, a criminal court can only address compensation for harm suffered as a result of crimes if such crimes have been found to have taken place and the person standing trial for his or her participation in those crimes is found guilty”, they wrote. The judges didn’t bother to cushion this terrible news – they went even further, stating that “the view that victims must be able to express their views and concerns on matters of reparations does not mean that this Chamber is the right forum to entertain such views and concerns”.

Bad dream

It reads like a bad dream – a cold delivery of damning news, ushering in the reality of even more hopelessness. One wonders, couldn’t the judges have expressed an iota of empathy in their legal reading of the ICC’s mandate? And even then, one could argue that the judges erred in only sticking to the letter of the law and overlooking its spirit by choosing to rotate the wheel of justice backward instead of forward. They blatantly disregarded their moral mandate at the altar of legal dictates, deciding not to interpret the law progressively. Couldn’t they have reached out to wider horizons of law, wisdom, norms and practices and many international instruments such as the United Nations’ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), to reach a more agreeable and humane decision?

ICC-related cases require watertight investigations, evidence and witnesses. The six Kenyan cases were bungled and/or interfered with, which is why they collapsed. It was because of the prosecutor’s shortcomings that there were no convictions. An act of commission or omission by the government or prosecutor must not trickle down to the victims! The victims have cooperated with the Court since the start of the cases. Why should the judges instead chose to ‘punish’ the victims for their cooperation?

Dissenting judge

To be fair, one judge stood out from the rest: “with respect, I am unable to share the decision and reasoning of my highly esteemed colleagues”, wrote Judge Eboe-Osuji in his dissenting opinion. He too found the ruling too bitter a pill to swallow. “I firmly share the view that compassion must not be banished from the province of judging. But, I hasten to make clear also that my disagreement with my distinguished colleagues does not hang merely on the tendrils of that sentiment”, he declared. “Far more than that, my disagreement is firmly anchored in ‘the legal norms that should apply to [the] facts’ in the present matter, in the light of the terms and context of the Rome Statute.”

I commend Judge Eboe-Osuji. The magnitude of the egregious violence that took part in Kenya can neither be gainsaid nor underestimated. A majority of the judges ruled as if they doubted both the violence and existence of the victims. But Judge Eboe-Osuji has shown that he has not lost sight of the victims.

Nonetheless, the majority ruling still stands – the victims have lost. They expected that the ICC, being the ultimate international custodian of justice for crimes against humanity, would favourably consider their application and set a precedent for the future. Instead, they feel betrayed in the corridors of justice, both at home and internationally, further deepening their mental anguish, suffering and hopelessness. They have nowhere to go and no one to turn to, because all the doors of justice now appear shut.

Undermining the Court’s credibility

The Court unwittingly fell into the schemes of the government, subverting justice by ensuring that there was no successful conviction and evading the hot issue of reparation for the victims. The collapse of the cases and the dismissal of the application for reparation will most likely further distance the Court from the current and future victims.

Truth be told, impunity has been rewarded, while victims have been trashed. Suspects are celebrating while victims are mourning.

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